“In matters of principle, stand like a rock, in matters of taste, swim with the current”. 

Part 1

Post Yahya Jammeh has bequeathed the Gambian people a new democracy and homegrown people’s centred Constitution ready for a referendum overcoming the final political volatility and legal legacy of former President Yahya Jammeh. 

That bequest did not come on a silver platter. It was achieved at the alter of great sacrifice, including loss of lives, limbs, and liberties. We have to consolidate the gains made so far for ourselves and future generations. 

If we do not, we shall go into the annals of the history of this nation as a generation that betrayed the cause of its forebears.

Is the Attorney General and Minister for Justice just another lawyer defending the government before the judiciary, or is the institution more than that? Who is, after all, the Attorney General’s client? 

The AG advises the government on such legal matters as referred or assigned by the President and has the right of audience in all courts in the Republic of the Gambia and also can represent the country abroad on legal matters. 

The Constitution does not provide for the Attorney General for the President. It provides for the Attorney General for the Republic of the Gambia. The office would indicate that the AG’s client is not the government but rather the Gambian people.

“If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself,” according to The Federalist papers number 51. 

I think the Attorney General is supposed to discharge the high constitutional office independent of the political Executive that appoints him. Many eminent lawyers have discharged this office with high distinction.

The AG is “Attorney General for the Gambia,” not attorney general for the President. In that, the AG is unique, for he or she acts “for The Gambia” and not the President. There is a constitutional expectation on the AG and other legal officers to exercise independent judgment and provide wise counsel to the government, notwithstanding who appointed them or what advice is being expected. 

This makes the task of the Attorney General and Minister of Justice very significant and indeed delicate. The fact that constitutionally the Attorney General has to be as good as a Supreme Court judge demonstrates the framer’s intent of the Constitution as in other countries. The office of Attorney-General ought to be a pivotal institution that helps the government act following the rule of law. 

I believed the Attorney General is obliged to speak truth to power and help the government to adhere to the Constitution.

It is my considered view that the unprecedented zeal with which the criminal justice system in the Gambia has undertaken the campaigns for fighting corruption and ending impunity can only point to one thing; that it will be a plebiscite on a straightforward question: Do we, Gambians value the independence of the judiciary?

The Gambia’s Ministry of Justice needs an Attorney General with a grounding of law enforcement rule and consistent with a fierce defence of human rights and combating corruption when the country’s judiciary is dysfunctional and compromised. 

The Gambia faces numerous challenges to the rule of law with an inadequate justice administration capacity. The re-establishment of the rule of law and the proper administration of justice is critical in the post-Jammeh era as well as President Adama Barrow’s checkered and speckled administration with paradoxes in the administration of criminal justice inherent in apex court’s travails. 

How would the Gambia repair its battered and damaged justice system in the post-Jammeh period and the first three years of President Adama Barrow?

 Let us not forget the sage advice of an Indian scholar and jurist B R Ambedkar: “However good a Constitution may be, it will prove to be bad if those implementing it are not good. However bad a Constitution may be, if those implementing it are good, it will prove to be good.” 

Our 1997 Constitution and the final draft constitution appear to be amongst the finest in the world, but we need upright people in high constitutional offices to uphold its promise.

The Attorney General’s Office is such an office since the Attorney General for the Gambia represents the people of the Gambia. Professionally speaking, the Attorney General and Minister of Justice has to be good enough to be appointed a Supreme Court judge and must discharge his office in that spirit. 

How would the country address the numerous human rights abuses that occurred during the Jammeh years? The new Attorney General must safely navigate justice, accountability, truth, and genuine reconciliation in the post-Jammeh Gambia, as these matters will have profound implications on building co-existence and new ways forward.

The country’s counsel, the Attorney-General and Minister of Justice for the Gambia should be an independent law officer who is mandated to uphold the Constitution and is obliged to speak truth to power.  

The appointment for an Attorney General and Justice Minister that meets the constitutional or statutory qualification and known for rectitude and good judgment will be an answer in the affirmative. 

On the contrary, a submissive Attorney General will be set the stage for the complete capture of the last remaining independent arm of the State by the powerful elite and cartels that run this country and the ultimate damnation of our independence heroes’ blood and effort, but the great promise of the Constitution. We know what they say; “In matters of principle, stand like a rock, in matters of taste, swim with the current”

However, this is the Gambia, a country where we often attach more excellent value to overblown/insecure personal egos of state officers than the rule of law and other matters of collective public interest. 

So we can expect many an Attorney General who is submissive to the President; if he/she does not sing the Chief Executive’s tune, he/she time at the corner office is either a nightmare or limited. (Does the AG have the security of tenure?). 

The paradox is, whereas you are supposed to be the chief legal adviser to the government, you only manipulate strict instructions to suit the law or vice versa to give legal advice. The upshot is that you give wrong legal advice to the Chief Executive to please him. The Gambia’s Chief counsel in that position is not different. 

I believed that the predecessor Attorney General’s failed his best ability to not wriggle out of bad situations where he could not agree. The outgoing Attorney General one is a gossamer, particularly impotent and stymied fighting against corruption and on the Executive’s apparent impunity, particularly on the disobedience of constitutions.

By Alagi Yorro Jallow